Jaynal Abedin And Ors. vs Hyder Ali Khan Pani on 17 August, 1927

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Calcutta High Court
Jaynal Abedin And Ors. vs Hyder Ali Khan Pani on 17 August, 1927
Equivalent citations: AIR 1928 Cal 441
Author: Mitter


Mitter, J.

1. This is an appeal from a decree of the Subordinate Judge of Mymensingh, dated 11th December 1924, which affirmed a decision of the Munsif of Tangail dated 28th February 1923.

2. The suit in which this appeal arises was commenced by the plaintiff for recovery of arrears of rents and cesses together with damages for the years 1327 and 1328 B.S. from the defendants who are three in number at the rate of Rs. 135-8-0 per year. The plaintiff alleges that defendant 1 was the original holder of the durputni to which the suit relates and that defendants 2 and 3 are transferees from defendant 1 of the durputni interest and they have consequently been impleaded in the suit.

3. The defence of the defendants, who filed separate written statements, is substantially this:

That plaintiff is not entitled to recover any rent as the defendants have been kept out of possession of two mouzas, Haria and Gajaria, compirised in the durputni and that the rate at which the rent has been claimed cannot be recovered as the solenamah, on the basis of which this rent was adjusted, was invalid and inoperative.

4. In order to understand the points raised before the lower Courts which have been repeated before this Court it is necessary to set forth briefly the following material facts. The plaintiff executed a durputni putta (Ex. B) in respect of six mouzas mentioned in the plaint and mouza Haria by which the rent stipulated to be paid was Rs. 165 per year. On 14th of Aughrayan 1310 B.S. (1903) the terms of the lease were modified by another registered deed of agreement (Ex. 4), by which the annual jama was raised from Rs. 165 to Rs. 188-2-2 per year. Subsequent to this deed of agreement the Court of Wards took charge of the plaintiff’s estate and brought a rent suit against defendant 1 in the Court of the Subordinate Judge of Mymensingh for rents for the years 1321-1326 B.S. The suit was ultimately compromised and a decree was passed embodying the terms of the compromise. Neither the petition of compromise nor the decree embodying the compromise has been placed before us and we are left to gather the terms of the compromise from the following statements regarding its contents in the Munsif’s judgment.

…and on the strength of this solenamah the defendant relinquished all claims in mouza Haria, the plaintiff admitted defendants’ right and possession in Gajaria mouza and rent payable by the defendant was accordingly reduced to Rs. 135-8-0 and in consideration of the defendants’ relinquishing his claim in Haria mouza the plaintiff relinquished his rents for the period he claimed in that rent suit. Besides the stipulations the defendant affirmed the genuineness of the deed of agreement Ex. B.

5. This solenamah was embodied in the decree and the suit was dismissed accordingly : vide Exs. 5 and 9.

6. It is to be noted here that defendants 2 and 3 were no parties to the solenama although the plaintiff was informed of the purchase by defendants 2 and 3 from defendant 1 of the durputni in question as the landlord’s fee was deposited The purchase of defendants 2 and 3 was alleged to have been made for a valuable consideration of Rs. 1,500 and was in the nature of a hibabilewaz and was made four or five months before the compromise decree and during the pendency of the rent suit in which the compromise was made. The plaintiff has instituted the present rent suit on the basis of the compromise decree. The case made in the Courts below by the defendants is: (1) that the solenama cannot be admitted in the evidence as it was not registered and this notwithstanding its being embodied in the decree, as the compromise (solenamah) had the effect of creating a new durputni with new terms, and that consequently it required registration, having regard to the provisions of Section 17, Clause 1(d), Registration Act; and (ii) that defendants 2 and 3 are not bound by the compromise as they were no parties to the said compromise decree. The Munsif held that the effect of the compromise (solenama) was not to create a new lease but only to make a certain variation in the old rental and in certain other incidents of the tenancy and as such it did not require registration having regard to the provisions of Section 17(2), Clauses 1 and 6, Registration Act. The Munsif further held that the transfer in favour of defendants 2 and 3 which are evidenced by two deeds (Exs. A and A-1) are affected by the doctrine of lis pendens as embodied in Section 52, T.P. Act and defendants 2 and 3 took the property subject to the result of the previous rent suit which ended in the compromise decree. The Munsif accordingly decreed the suit of the plaintiff and directed that defendant 1 will be liable for rents, cesses, damage and proportionate rents up to the end of Pous 1327 and that he should be absolved from liability from the date of Hiba which is 20th of Pous 1327 B.S. and that defendants 2 and 3 be liable for rents from beginning of March 1327 B.S.

7. An appeal was taken by the defendants to the Court of the Subordinate Judge who affirmed the decision of the Munsif.

8. In second appeal the same two objections which were taken in the Courts below have been repeated before us by the learned vakil for the defendants now appellants. With regard to the first objection it is sufficient to state that the; effect of the solenama in the previous rent suit has been not to create a fresh lease so as to attract the operation of Section 17, Clause 1(d), Registration Act, and make registration of the solenama compulsory, All that was done was that mouza Haria was excluded from the durputni and a separate jama of Rs. 52 odd fixed for the mouza was deducted from the entire rent of the durputni and the present rental was fixed as being the sum total of the rents of the different mouzas. There might have been a variation of rent of the original lease by the solenama which, in order to be effective, would have required registration but for the provisions of Section 17(2), Clause (1) and (6), Registration Act. There is, therefore, no substance in this objection of the defendants which must be overruled.

9. The second objection raised is one of substance and must prevail. It has been contended that the Courts below are in error in holding that the transfers in. favour of defendant 2 and 3 are effected by the doctrine of lis pendens. The argument is that Section 52, T.P. Act, can not apply as the suit was a rent suit and was not a suit in which “any right of immovable property was directly and specifically in question” within the meaning of the said section. A suit for rent is primarily a suit for money and although rent is a first charge on the property no charge is created until, in any event before decree. For it has been pointed out in the case of Basant Kumar v. Khulna, Loan Co. [1914] 20 C.L.J. 1 that
the rent payable by a putnidar to his zamindar, which has been transformed into a judgment-debt, is a first charge on the tenure.

10. The same rule applies with regard to the rent payable by the durpatuidar to the putnidar. It is open to the holder of the rent decree to proceed if he likes against properties of the lessee other than the lease hold property. It is of the essence of the rule of lis pendens that in order to obtain the protection of the rule the property must be directly and specifically in question in the suit. In the previous rent suit there was no question of any title to, the properties transferred. All that was said was that defendant 1 had not been given possession of some mouzas of the tenure and therefore was entitled to entire suspension of rent.

11. In the case of Faiyaz Hossain v. Prag Narain [1907] 29 All. 339 at p. 345, the Judicial Committee of the Privy Council made the following observations with regard to the doctrine of lis pendens as enunciated in Section 52, T.P. Act.

The doctrine of lis pendens with which Section 52 of the Act of 1882 is concerned is not, as Turner, L. J. observed in Bellamy v. Saline [1857] 1 De. G. and J. 566, founded upon any of the peculiar tenets of a Court of equity as to implied or constructive notice.

It is…a doctrine common to the Courts both of law and of equity and rests upon this foundation, that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail. The correct mode of stating the doctrine as Cranworth, L.C., observed in the same case, is that “pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent.

12. It will appear clear from the above observations that alienations of the property in dispute were not affected by the doctrine of lis pendens. In the rent suit there was no dispute with regard to the title to the durputni as between plaintiff and defendant. There was allegation by the defendants of dispossession by the plaintiff from some durpatni mouzas. The rent suit was not a suit to establish the title but was a suit to recover a debt. Neither did the defence raise any question of the title of the plaintiff to the superior interest in the disputed durputni so that by the pleadings in the rent suit title of the plaintiff in such superior interest was not drawn into controversy, nor was there any dispute with regard to the title to the durputni interest which was alleged to have been transferred by the hibas in favour of defendants 2 and 3, but the allegation only was that defendant 1 had not been put in possession of all the mouzas covered by the durputni.

13. To make a lis pendens notice to a purchaser of an estate, the question in the action must relate specifically to the estate and not merely to the money secured on it : see White and Tudor’s Leading Cases on Equity, 5th edn. Vol. II, pp. 75 and 76.

14. In the case of Ex-parte Thornton [1867] 3 Ch. 178 Lord Justice Cairns said:

Then the lis pendens being a technical expression well known, it seems to ma to be perfectly clear that it always implied a claim of right, or a claim to charge specific property.

15. A suit for rent can hardly be regarded as a claim to charge specific property. In my opinion the transfers in favour of defendants 2 and 3 are not affected by the doctrine of lis pendens as embodied in Section 52, T.P. Act. In citing the English cases I am not unmindful of the observations of the Judicial Committee of the Privy Council in Narendra Nath v. Kamalabasini [1896] 23 I.A. 18 at p. 26 where their Lordships quoted with approbation the remarks of Lord Herschell in Bank of England v. Vagliano [1891] A.C. 107 that the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any consideration derived from the previous state of the law. The purpose of such a statute surely was that on any point specifically dealt with by it the law should be ascertained by interpreting the language used instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions.

16. But I feel myself justified in referring, to the English cases for the purpose of showing that not only Section 52, T.P. Act, does not apply to the facts of the present case, but that also the general doctrine of lis pendens does not apply to the facts thereof. It also seems to me that it was assumed in the Privy Council case of Faiyaz Hosain v. Prag Narain [1907] 29 All. 339, to which I have already referred, that the rule of lis pendens obtaining in England; is the same as the rule embodied in Section 52, T.P. Act. The appeal must succeed on this ground.

17. The result is that the decrees of the lower appellate Court as against defendants 2 and 3 are set aside and the case is remitted to the Court of appeal in order that the Court may try the question on the evidence already taken as to whether there has been such dispossession of the defendants from the lands of the durputni by the plaintiff as, to entitle defendants 2 and 3 to claim suspension of rent or proportionate abatement thereof, and to retry the appeal in the light of the above observations.

18. The decree against defendant 1 for rent up to Pous 1327 B.S. will stand. The appellants are entitled to costs here and in the Courts below against the plaintiff.

Rankin, C.J.

19. I agree.

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